Issue of fact

Labour & European Law ReviewWeekly Issue 35215 January 2014

The law states that claimants must present their claims to a tribunal within three months from the effective date of termination, unless it is not “reasonably practicable” to do so. In Norbert Dentressangle Logistics Ltd v Hutton, the Employment Appeal Tribunal (EAT) held that the question of what is “reasonably practicable” is an issue of fact for the tribunal to decide.

Basic facts

After being suspended in November 2011 for alleged conspiracy to defraud and theft, Mr Hutton was invited to a disciplinary hearing scheduled for 3 January 2012. As he was off sick, the hearing was rescheduled for 9 January but he did not attend, nor did he respond in writing to the allegations.

He was dismissed on 16 January, but did not receive the letter informing him of his dismissal until two days later, making the effective date of termination (EDT) 18 January. He attended an appeal hearing in February, but was told on 7 March that it had been rejected.

He then got in touch with his employer via e-mail in early April indicating that he would prefer not to lodge a tribunal claim and asking if they could resolve their differences via Acas. His employer made clear by e-mail on 4 April that they were not prepared to negotiate a deal with him.

As he had been dismissed on18 January, the time limit for entering a claim expired on 17 April 2012. He filed complaints for unlawful dismissal and unlawful deduction of wages on 30 May - six weeks out of time.

Tribunal decision

The employment judge accepted Mr Hutton’s evidence at a pre-hearing review (PHR) that he was not able to function for a few weeks after being dismissed. After his employer rejected his overtures in early April, he then went through a period of about a month when he only left his flat to go out for food, did not answer the telephone and just tried to avoid life. On that basis, the judge concluded that it was not reasonably practicable or “reasonably feasible” for Mr Hutton to have presented his claim within three months.

She then considered the second question - whether he brought the claim within a reasonable period after his health started to improve. As there was “no reason to doubt the claimant’s credibility” the judge accepted that he had dealt with the claim as soon as he felt able and he had therefore presented it “within a period that was reasonable in the circumstances”.

EAT decision

Dismissing the appeal, the EAT held that the question of what is “reasonably practicable” is an issue of fact for the tribunal to decide.

Although the original tribunal judgement did not explain very clearly why Mr Hutton was well enough to engage in an email exchange at the beginning of April, but not well enough to submit a tribunal application form within the time limit, the EAT accepted that the judge had identified a marked difference in Mr Hutton’s ability to function after his employer dismissed his overtures on 4 April.

Reading the decision as a whole, and bearing in mind the guidance of the authorities, the EAT decided, on balance, that the tribunal’s decision should be allowed to stand.

Comment

Unfortunately, this decision is not a green light to claimants who miss the three month deadline because they are understandably upset at being dismissed. It was a brave judge and an even braver EAT to find in this claimant’s favour. The EAT said, when answering the employer’s argument that the decision would open “the floodgates” to further claims, “It will be a very rare case in which it is accepted… it is, after all, essentially a question of fact and the assessment of a witness”. Therefore while this case will assist claimants in a genuine case of breakdown or unexpected accident, the EAT’s opening words need to be remembered - “This case is one in which the temptation for a court on appeal is to ask whether the decision is perverse.”